Chief Justice Warren E. Burger: We'll hear arguments in number 77, United States against Weller.

Mr. Springer, you may proceed whenever you're ready.

Mr. James Van R. Springer: Mr. Chief Justice and may it please the Court.

The question on the merits of this case is the validity of the Selective Service Regulation that says that a registrant may not be represented by a lawyer when he has his personal appearance before his Local Draft Board.

The appellee, Weller, was classified I-A after such a personal appearance or rather his I-A classification was retained, going to the procedures after a bit, after such a personal appearance, but he refused to submit to induction when he was ordered to report by the Board and, accordingly, he was indicted.

The District Court dismissed the indictment before trial based on a motion filed, actually before there was a plea to the indictment, on the ground that Weller's lack of counsel at the personal appearance invalidated the order to report and, the United States has appealed from that order, dismissing the indictment.

But before the Court might reach the merits, there is a threshold question of appellate jurisdiction.

There's no doubt that the government can appeal this dismissal order of the District Court to some Court.

The question is, and it's a difficult one under the Criminal Appeals Act, whether the appeal should be to this Court or to the Court of Appeals initially.

Justice William J. Brennan: Tell me, Mr. Springer, we would give him a rather welcome use to which fact something was being done by the Congress for the Criminal Appeals Act.

Where does that stand, do you know?

Mr. James Van R. Springer: I understand, I don't have a report as to what has happened this morning.

The report I had yesterday afternoon is that a Bill, in which the Senate has adopted in substance the government's proposal to clear up this area, is now before a Conference Committee.

The House has not passed it.

It's a matter of getting it through the Conference Committee and then having it passed by the House.

Justice William J. Brennan: So it may happen within next week or so we hope?

Mr. James Van R. Springer: Yes, it may, Mr. Justice.

I'm told that it is unlikely however that it would be intended to be retroactive to cases pending on appeal.

That may be an issue that will come back to--

Justice William J. Brennan: We won't have to suffer with it much longer if something is passed?

Mr. James Van R. Springer: We can hope not.

Justice William J. Brennan: I hope we don't get the same new problems with the same order?

Chief Justice Warren E. Burger: Is the Solicitor General's office still of the view that this case should be in the Court of Appeals and not here?

Mr. James Van R. Springer: Yes, very much so, Mr. Chief Justice.

And of course I will get into that, although, of course, we initially filed a notice of appeal to this Court on further reflection.

The Solicitor General concluded that the case was one that should be in the Court of Appeals and he --

Justice William J. Brennan: Do you have a protected appeal pending?

Mr. James Van R. Springer: That would not be necessary, Mr. Justice Brennan, because of the provision in the Criminal Appeals Act that says if an appeal is improperly brought here --

Justice William J. Brennan: You transfer it?

Mr. James Van R. Springer: It should be “remanded” is the word, but if you -- of course we filed, in lieu of a jurisdictional statement, we filed something called a motion to remand, and the Court has deferred the issue of jurisdiction until this time.

So, I would like to speak for a few minutes at the outset about the jurisdictional question.

As I indicated, this case comes up on the grant of the motion -- of a pretrial motion to dismiss the indictment under Rule 12 of the Criminal Rules of Procedure.

The motion to dismiss was originally based on two grounds. First, a claim that Weller's I-A classification was improper because there was no basis in fact for denial of his conscientious objector claim and second, the motion asserted the claim which is what is before the -- more specifically, before the Court now that the order of the Court was invalid because Weller was, in several respects denied due process at his personal appearance before the Board, principally in that he was not allowed to be represent by counsel, and that was the only issue that has survived as a live issue to this point, but he also contended initially in his motion that the Local Board had improperly denied his request to have witnesses with him and to have a Court reporter transcribe the proceedings of the personal appearance.

There was no hearing on the motion to dismiss the indictment, and the District Court granted the motion on the basis of the indictment itself and Weller's selective service file which, of course, was undisputed as to its contents which had been attached as an exhibit to the motion to dismiss that he filed.

The file -- the selective service file showed on its face that, while his lawyer had written letters to the Draft Board asking that he be allowed to appear with Weller and for the other procedures that I've mentioned and that the Local Board had denied them in reliance on the regulations.

The District Court concluded in a written opinion that the Selective Service Regulation in question here, the one that provides that no registrant may be represented before the Local Board by anyone acting as attorney or legal counsel was an invalid regulation.

It did not directly hold that the regulation was unconstitutional under the Due Process Clause.

Instead, it followed the route that this Court followed in the Greene and McElroy case, some-11 years ago, relating to rights of confrontation in Defense Department security clearance proceedings.

The District Court considered that the denial of counsel before the Local Draft Board on the personal appearance, was a matter of doubtful constitutionality, and therefore, it considered that the regulation could not be valid unless there was express congressional authority for its promulgation by the President.

And, the District Court found, despite the circumstances that I will discuss when I reach the merits as I will, the District Court decided that the general statutory grant of authority for the President to establish selective service procedures did not clearly enough authorize him to promulgate a regulation that excluded representation by counsel.

As I indicated, it's plain that this dismissal order is appealable somewhere since it came before the trial and was done as a matter of law on the basis of a procedural defect that was apparent on the face of the selective service record.

So, the only question under the Criminal Appeals Act is whether the judgment was one “based on the invalidity or construction of the statute upon which the indictment or information is founded” or in the alternative, whether it was a “decision or judgment sustaining a motion at Bar.”

If it was either of those, then the appeal would be directly to this Court.

We say, however, that it was neither so that the appeal should be in the Court of Appeals for the Ninth Circuit under that part of the statute which gives the Courts of Appeals jurisdiction over “any decision or judgment dismissing any indictment, except where a direct appeal to the Supreme Court is provided by this Section.”

Of course, this --

Justice Harry A. Blackmun: Mr. Springer, what is the reason for your deep concern about this?

If it went to the Ninth Circuit, would it be here anyway in due course?

Mr. James Van R. Springer: Well, it would be here, Mr. Justice Blackman, only on a petition for a writ of certiorari.

Our concern is more -- rather, than a narrow concern with this particular litigation is with the Administration of Justice, I think it's fair to say.

Assuming that we do not have a new legislation, there are serious questions which are, if nothing else, very difficult ones for the government in deciding where to proceed, and we think it's appropriate to make the point here and also, we believe strongly in the general principles of this underlying much of this Court's jurisdiction that cases should be considered in the Courts of Appeals before they come here.

And, I think that general consideration is reflected in the principle that underlies the majority view in the Sisson case last term, as well as a number of other -- of this Court's cases under the Criminal Appeals Act.

That that Act --

Justice William J. Brennan: May I ask, Mr. Springer.

I gather, your position is that it's not under that first paragraph because the decision was not based upon the invalidity of the construction of a statute.

Is that right?

Mr. James Van R. Springer: Yes, that's right, Mr.--

Justice William J. Brennan: And on the second one, that this is not a motion at Bar, is that it?

Mr. James Van R. Springer: Yes, and as I will try, I hope briefly to articulate our reasons.

Justice William J. Brennan: But, I mean that it's not a motion at Bar, not that it's not a motion at Bar when the defendant -- that it is a motion at Bar, but not one when the defendant is not to put to jeopardy.

Mr. James Van R. Springer: No, I think it's clear.

There's no question of jeopardy here.

This motion was filed even before a plea was made.

Justice William J. Brennan: It's just simpler that it's not a motion in both.

That's the difference --

Mr. James Van R. Springer: Yes.

Justice Harry A. Blackmun: The government is in the peculiar position of having brought it here and then wishing it hadn't, is it not?

Mr. James Van R. Springer: Well, having brought it here, Mr. Justice Blackmun, by the filing of a piece of paper in the District Court called a notice of appeal to the Supreme Court.

Of course, we raised this at the first stage at which we filed any papers in this Court.

We had a dilemma, frankly as we frequently have under this Act, in knowing where to go first.

I think the principle -- the basic principle in which this question ought to be considered is the principle, as I indicated, as the Court has recognized on a number of occasions that the Criminal Appeals Act is a technical statute that historically arose from a clear congressional compromise rather than from a single coherent all-embracing legislative purpose and, therefore, that it should be read narrowly.

And, I think that principle is especially apt in this situation where the issue is not whether there is an appeal or not, but simply where it should be.

So, in a sense, the practical issue is an issue of the management of appellate business rather than deciding whether or not a litigant, that is the government, has a right to appeal or not.

So, in that sense, I think the -- it might be said that less is at stake than, for example, in the Sisson case where it was an issue of whether or not there would be any appeal at all.

In light of that, we think it's fair to say that the burden of argumentative persuasion should be on those who say that the appeal should come directly to this Court, short-circuiting the more conventional initial review in the Courts of Appeals.

In this respect, it is somewhat like the principles that have under -- that underlie some of the Court's decisions in the three-judge Court area in civil cases where there's a similar principle of narrow reading of a technical statute.

Let me then turn to the two statutory issues.

First, the question whether the dismissal of Weller's indictment on the ground that a procedural regulation followed by the Local Draft Board was insufficiently authorized by the statute.

The appellee says that that is -- that decision amounted to a construction of the statute on which the indictment is based, that is, the Selective Service Act.

The short answer to that is that the dismissal was based on the regulation, not on the Act, and the Court held the regulation to be invalid under a principle of, I guess you'd call it, general law that regulations impairing procedural rights are invalid unless Congress has specifically authorized them.

The only reference to the statute, therefore, was a negative one and we do not think that a determination that an Act does not say something on a subject has to be treated as a “construction” of the statute under this technical Act which, as we say, should be read narrowly.

Justice John M. Harlan: The regulation itself which the Court either constituted the offense, established the offense, or to interpret the statutes involved?

Mr. James Van R. Springer: No, it does not.

It's a regulation under a general authorization issue.

So, in that respect, it is different from the Mersky case, I think, where the regulation was, first, a substantive regulation and, second one, directly contemplated by the statute to fill out a gap left by mistake.

Justice John M. Harlan: Let me ask you one more question.

I don't want to interrupt you, but is this a motion of the government's to remand the appeal before or after Sisson?

Mr. James Van R. Springer: It was filed before Sisson.

The decision was filed --

Justice John M. Harlan: Before the decision of Sisson came down?

Mr. James Van R. Springer: Yes, clearly it was -- I'm not sure.

I think it was early this year.

Justice William J. Brennan: January 16, 1970.

Mr. James Van R. Springer: Yes.

Justice Hugo L. Black: Is it your position that the Court cannot consider this case on the jurisdiction reason or that it should not?

Justice Hugo L. Black: How old is this man, this man who's about to be drafted?

Mr. James Van R. Springer: He was born in 1944, so he would now be 26.

Of course, he is under -- the issue is the criminal indictment for a failure to report.

He was due to report in I believe, the summer of 1968 and the criminal proceedings have been pending since, shortly after that time.

Justice Hugo L. Black: He's beyond the age now?

Mr. James Van R. Springer: I'm not sure exactly when his birthday is, Mr. Justice Black, nor can I speak authoritatively as to the effect that all of this may have on his future.

Justice Hugo L. Black: What's the effect on the cases of this kind?

Mr. James Van R. Springer: Well, I – this --

Justice Hugo L. Black: Would it be a better procedure if, maybe not, maybe we can.

The Court could, in instances where delays are wholly unnecessary in encrypting the efforts of the government that it wouldn't be better if it could -- this Court could, in some cases, decide them.

Mr. James Van R. Springer: Well, of course it could --

Justice Hugo L. Black: Instead of spending two years?

Mr. James Van R. Springer: Yes.

Of course, Mr. Justice Black, I believe that once the case is in the Court of Appeals, as we say it should be, then it would be open to a --

Justice Hugo L. Black: That's right.

Mr. James Van R. Springer: -- certiorari before judgment.

Justice Hugo L. Black: That may be--

Mr. James Van R. Springer: Though I think that's not available now because the case is not in the Court of Appeals.

Justice Hugo L. Black: It may be an adequate reason.

Mr. James Van R. Springer: Yes.

So we do think that this is a very different kind of situation from the Mersky situation where the Court could say and – that -- or did say, again over the government's contrary argument, that the regulations were so closely intertwined with the statute that the issue of interpretation of the regulation should be considered as an issue of interpretation of the statute.

This brings me to the motion at Bar point, which the appellee urges alternatively as a basis for this Court's jurisdiction.

I think Sisson, again, makes it clear that the question of what a motion at Bar is, is a question that is still open, but we would urge the Court to adopt the definition suggested by Mr. Justice Stewart's opinion in the Mersky case which would limit a motion at Bar to matters in confession and avoidance, such as res judicata or the statute of limitations or denial of speedy trial.

That is limited to defenses that do not go to the general issue, but which solely on the basis of new matter would prevent a conviction even if the defendant committed the criminal acts that are charged.

Justice John M. Harlan: Well, this is pretty close to that?

Mr. James Van R. Springer: Well, except, Mr. Justice Harlan, I think that this is not new matter.

I think it has to be said that implicit in the indictment is an allegation that the process of classification, that is, the order to report for induction was a valid and proper order.

I notice that --

Chief Justice Warren E. Burger: Very well, we'll resume after lunch.

[Luncheon Break]

Mr. Springer, you may continue.

Mr. James Van R. Springer: Thank you, Mr. Chief Justice.

I'd like to say just a couple of words more about jurisdiction and then move on to the merits if I can.

We were in the middle of a point about the applicability of a motion at Bar when we paused at the lunch hour.

As I indicated, we think that that clause should be interpreted in terms of the common law concept of a special plain Bar and there are indications in the legislative history that that is in fact, what Congress had in mind in 1970 when it passed the Act.

That is, the principle is that a motion at Bar relates only to a defense that does not go to the general issue and which, on the basis of new matter, would prevent a conviction even if the defendant committed the acts alleged in the indictment.

Justice Potter Stewart: Would that involve -- would that necessitate overruling Mersky?

Mr. James Van R. Springer: I think not, because Mersky has held nothing about the motion at Bar.

The Mersky-- in Mersky, the Court found -- the majority found jurisdiction on the basis of the construction of the statute.

Justice Potter Stewart: And that was just a little sideline between Justice Brennan --

Mr. James Van R. Springer: By – size -- side play, Your Honor.

Justice John M. Harlan: You'd have to resolve that lack of occasion motion at Bar?

Mr. James Van R. Springer: Yes, that's -- that unfortunately is necessary, finally, I think in this case.

Justice John M. Harlan: Tell me, what's the status now (Inaudible)?

Mr. James Van R. Springer: Well, I just had another indication at lunch time.

It is in the, as I indicated earlier, it is in the House of Senate Conference Committee on the Law Enforcement Assistance.

Justice John M. Harlan: (Inaudible)

Mr. James Van R. Springer: Well, it's a little more complicated than that.

It's, as I understand, the Law Enforcement Assistance Bill.

It has been passed by the Senate with the Criminal Appeals Act amendment in it.

The House has not, that's a writer and -- well, the House has apparently passed the basic Bill.

The House has not passed, specifically, the amendment.

So, it's a matter of working it out in the Conference and getting it done.

Justice Hugo L. Black: Would it affect this problem?

Mr. James Van R. Springer: It would -- well, I think it would because I understand the Bill would quite clearly resolve this problem.

In fact, there -- I have had some indications the Bill may eventually come out with a provision only for appeal to the Court of Appeals, reserving this Court before certiorari.

In any event, I think it's clear that the Bill, if it's accepted in anything like the form in which it has been so far, would not allow direct appeal in any case that does not involve the validity of the underlying statute, so that we wouldn't have this construction of statute issue or the motion at Bar issue I think, clearly, as I understand the Bill.

The point, I think, on this notion of a motion at Bar as something raising new matter that would prevent a conviction even if the defendant has committed the acts of which he's charged is that the defense that Weller has raised here is not that kind of defense.

His defense raised in his motion is that there was no offense.

He's not confessing the events and saying there's some external reason why I can't be convicted for it.

He says there is no offense because implicit in the indictment is an allegation that the order to report for induction was invalid.

He claims that this order -- excuse me, the order to report was valid.

He claims that the order to report was invalid because of the procedural defect and hence that he committed no crime when he failed to take his step forward at the induction station.

So, we think that his motion presented a purely legal defense based on the face of the record and that, under the common law principles of a special plea at Bar or a motion at Bar, that does not qualify.

So, for that reason, we think that the case should be remanded to the Court of Appeals and that this Court did not reach the merits, but since the Court might disagree with that, I will now proceed to the merits.

Justice Hugo L. Black: What is the view point of your adversary?

Mr. James Van R. Springer: He has taken the, as I understand it, the unqualified position that this Court does have jurisdiction.

Justice Hugo L. Black: This Court?

Mr. James Van R. Springer: Yes.

As I indicated, the question on the merits quite simply, in the terms of the District Court's opinion, is whether the President had authority from Congress to promulgate the selective service regulation which has been in force, I might say, in -- since 1940, that is, throughout the entire modern history of selective service.

Whether he had authority to adopt that regulation which reads no registrant may be represented at his personal appearance before the Local Board by anyone acting as attorney or legal counsel.

And, we do not deny that if the District Court was right in holding that regulation invalid, that the indictment should in fact have been dismissed.

So, the question is the validity of that regulation on its face.

Before I go on to discuss the arguments made by the District Court and by the appellee, I think it would be helpful to put the question in context by describing the role that the personal appearance has in the Selective Service classification process.

That process begins, of course, when a young man registers with his Local Board.

Subsequently, the Board sends him a classification questionnaire which he fills out and which then goes into a selective service file bearing his name, together with any other written information of any kind that the registrant or anyone else on his behalf chooses to provide to the Board.

In the case of someone who, like Weller, claims to be a conscientious objector, this includes the Form 150, the special CO Form and it can include, under the regulations, any other written request for a particular classification or any documents, affidavits, or depositions subject only to the condition that they are as concise and as brief as possible.

There's nothing to stop a registrant from filing complete legal brief with his Board on his classification if he chooses to.

Then, when the time comes, the Board classifies each registrant at a formal meeting and the regulations provide, and I think this is important, quite explicitly that the classification must be done on the basis of the entire file and nothing other than written material that appears in that file and of course, the registrant or anyone he authorizes has the right to inspect that file.

Then, after the Board makes its initial classification decision, it sends a notice of classification to the registrant and then, for the first time, he has a right to the personal appearance that we are talking about, before the Board or a member or members designated for the purpose.

In order to have such interview, he has to request it in writing 30 days -- within 30 days after the notice of classification.

The nature of the personal appearance is described in this language from the selective service regulations which appear on page 60 of our brief.

The regulation says at any such appearance, the registrant may discuss his classification, may point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file which he believes the Local Board has overlooked or to which he believes it is not given sufficient weight.

The registrant may present such further information as he believes will assist the Local Board in determining his proper classification.

Such information shall be in writing or, if oral, shall be summarized in writing by the registrant and, in either event, shall be placed in the registrant's file.

The Section before that, of course, prohibits counsel.

That's the specific regulation we're concerned with, and that regulation also provides that no person other than a registrant shall have the right to appear in person before the Local Board, but the Local Board may, in its discretion, permit any person to appear before, with or in behalf of a registrant and then there's a provision that if he doesn't speak English, he can have an interpreter.

Typically, there is not a stenographic transcript of the discussion at the personal appearance, but the Board may prepare a summary as the Board, itself, or one of the members of the Board did hear and put it in the file.

And, as I indicated, the registrant is directed by the regulation to prepare his own summary so that there would be that record in the file of what went on, and this ties in again with the regulation that the Board can classify only on the basis of written materials appearing in the file.

Justice Byron R. White: There is discretion of the Board as I understand, to allow someone else to appear for the registrant?

Mr. James Van R. Springer: That's at the end of that same regulation, which, I guess is on page 61 of our -- 60 or 61 -- I'm sorry, 59.

I'm sorry.

It's Rule -- Section 1624.1.

Justice Byron R. White: Yes.

Mr. James Van R. Springer: This all appears in Subsection (b) in my recollection.

Justice Byron R. White: Well --

Mr. James Van R. Springer: That's the end, provided further --

Justice Byron R. White: The proviso means then that, although the Board may permit any person to appear before them on behalf of the registrant, it can't be a lawyer.

Mr. James Van R. Springer: It can't be a lawyer representing him.

Chief Justice Warren E. Burger: He could have a lawyer there?

Mr. James Van R. Springer: He could have a lawyer there, but not as -- not strictly as a lawyer in the normal professional --

Justice Byron R. White: And he couldn't be acting on behalf of the registrant?

Mr. James Van R. Springer: Well, now, I think it's clear.

It cannot -- if he's acting on behalf of the registrant, it amounts to legal representation which in the context of his case to what the appellee is talking about and what the District Court is talking about is a lawyer asking questions, making arguments --

Justice Byron R. White: As a customary matter, of course, couldn't they just bring someone with them?

Mr. James Van R. Springer: I think not, as a customary matter.

It can be done.

Justice Byron R. White: It can be done and it could be a lawyer, as long as he just sit as a friend.

Mr. James Van R. Springer: Yes and below, of course, that would be in the discretion of the Board.

The Board might, in its discretion, do something that was reasonable, say, “we don't want anybody here.”

And of course, if the case ultimately gets into Court, there is frequently testimony about what went on at the personal appearance by the registrar and by the Board members.

Then after the personal appearance, the Board meets again to reconsider the classification and sends a new notice of classification recording the result.

After that, the man has three days to appeal to the State Appeal Board and he can submit with his notion -- with his notice of appeal a statement specifying the matters in which he believes the Local Board erred.

In other words, again, a brief on appeal if he so chooses, and the Appeal Board then classifies him again de novo and there are certain limited further appeal rights to the National Appeal Board.

Of course, a lawyer can assist the registrant in preparing any of these written materials which, again, the regulations direct the Board to base its decision on.

It's only when he goes and he discusses his case orally with the Board or designated members of it that he is on his own.

Justice Byron R. White: Has there been any publication of these regulations or anything, an explanation for the exclusions of legal representation from the hearing?

Mr. James Van R. Springer: I will -- I had planned to get to that in a minute.

Justice Thurgood Marshall: Without the hearing, the Board in its discretion can let anybody under the sun get in except the lawyer.

Mr. James Van R. Springer: Yes, that is so.

Justice Thurgood Marshall: It would include the County political leader?

Mr. James Van R. Springer: I think the discretion is subject to some limits.

I think it --

Justice Thurgood Marshall: With the Chamber of Commerce?

Mr. James Van R. Springer: Theoretically, yes.

Justice Thurgood Marshall: Or any other good person.

Well, what's wrong with the law here, why is he excluded?

Mr. James Van R. Springer: Well, Congress, and as I said I plan to get to this --

Justice Thurgood Marshall: Congress has made --

Mr. James Van R. Springer: Congress has made --

Justice Thurgood Marshall: -- up that the law is that they didn't want themselves to be litigants.

Mr. James Van R. Springer: Well, I think I can summarize the reasons which Congress has gone through in 1967 in connection with the latest revision of the Selective Service Act.

Proposals were made at that time, both in the House Committee, and in fact an amendment was introduced on the Floor of the Senate by Senator Morse, both proposals explicitly to allow representation by counsel at these personal appearances.

Justice Thurgood Marshall: At real full hearings, wasn't that in that too?

Mr. James Van R. Springer: I --

Justice Thurgood Marshall: More -- I mean, a more detailed hearing and that was --

Mr. James Van R. Springer: Well, of course, that -- I don't -- I'm not sure that -- I don't -- I think Senator Morse's amendment was restricted to counsel though.

Of course, one of the problems, and one of the reasons I think, why Congress shied away from this was that when you have representation by counsel, you inevitably have a different kind of proceeding from the relatively informal discussion that Congress had in mind.

But, as I indicated, Congress expressly rejected these proposals in the 1967 Act.

Congress has spoken on this issue at other times.

There is a provision in the Selective Service Act expressly exempting selective service proceedings from the Administrative Procedure Act.

Also, in 1965, there was a statute passed relating to a general right to have counsel before administrative agencies, and the House report on that Bill made an express statement.

Justice Thurgood Marshall: So that, in this case, Congressman X would appear at the hearing as Congressman X, but he couldn't appear as lawyer?

Mr. James Van R. Springer: Well, I think in context, perhaps I should -- what I've s -- the regulation we referred to speaks about persons appearing on behalf of a registrant.

It is possible, there are provisions allowing the Board to subpoena witnesses, and I think it's --

Justice Thurgood Marshall: I thought you said --

Mr. James Van R. Springer: -- it's not done.

Justice Thurgood Marshall: It was within the discretion of the Board, they could let anybody in.

Mr. James Van R. Springer: I think perhaps, now as I look at it more closely, I think I should amend what I said because of what it says, but the Local Board may, in its discretion, permit any person to appear before it with or on behalf of a registrant.

There is this separate subpoena power.

Justice Thurgood Marshall: That Congressman X could come in there --

Mr. James Van R. Springer: On behalf of the registrant.

Justice Thurgood Marshall: -- on behalf of him as Congressman X, but if he says “I appear here as Lawyer X, representing him,” his out.

Mr. James Van R. Springer: Yes.

Well, I think there is a -- I think, a distinction.

Congressman X comes in and says “I have known this boy all my life and he's a good boy and he's sincere in his conscientious objective beliefs.”

I think what a lawyer --

Justice Thurgood Marshall: He's not representing.

Mr. James Van R. Springer: No, that's speaking on his behalf.

Justice Thurgood Marshall: It doesn't say “or represent”?

Mr. James Van R. Springer: No, “may appear with or on behalf of,” and then the prohibition against lawyers says “no lawyer may represent.”

I think when a lawyer comes in to represent --

Justice Thurgood Marshall: Well, what if the man says that “I knew the registrant for a long time, etcetera, etcetera, etcetera.”

Mr. James Van R. Springer: But what Congress has intended to exclude is a lawyer who comes in for the purpose of what I'm doing right now.

Justice Thurgood Marshall: Isn't --

Mr. James Van R. Springer: Arguing with the Board, citing cases to it, saying the Welsh case means this and the Seeger case means that.

Perhaps, asking questions of the registrant to help him -- design to help him to state his conscientious objective views or, for example if it's a hardship exemption case, to -- trying to help him explain his exemption, and that is what -- I think it is quite clear that Congress has specifically, and by design, excluded.

Now, in --

Chief Justice Warren E. Burger: Mr. Springer, is this any more really than a limitation to keep this from becoming an adversary proceeding?

Mr. James Van R. Springer: No, I think that is exactly the --

Chief Justice Warren E. Burger: It's essentially what is --

Mr. James Van R. Springer: That's exactly the purpose.

Chief Justice Warren E. Burger: It doesn't use the term “lawyer” at all.

He can't be functioning as a legal counsel in this hearing, but he can have all the friends there he wants within limits.

Mr. James Van R. Springer: Yes, within the discretion of the Board and of course, in this case, Weller's lawyer asked to come in as a lawyer and that's the -- and the District Court decided it on the basis that he should be there as a lawyer so that he could ask questions and clarify matters and help the Board make its decision in the sense in which lawyers ordinarily do when they're acting as lawyers.

Justice Hugo L. Black: The Board can, if it wishes permit him to have a lawyer to proceed as a lawyer.

Mr. James Van R. Springer: No, the regulation says absolutely not.

Justice Hugo L. Black: You say it cannot.

Mr. James Van R. Springer: And I just, indicating a little further about what purposes that Congress had in mind in trying to keep this in a relatively informal non-adversary proceeding.

In this 1965 legislation I refer to, relating to general rights of counsel before administrative agencies, the House report on that Bill noted specifically that, under regulations prescribed by the President, a registrant may not be represented before a Local Draft Board by an attorney.

This is because of the large number of registrants involved, the informality of procedures, and the need for capacity to provide large numbers of men quickly for service.

And, again in connection with the 1967 draft legislation, there's a certain amount of congressional discussion about the reasons for rejecting the proposals then that there should be lawyers, again suggesting that it's inconsistent with the basic duty of the selective services to which, of course, this Court has recognized on numerous occasions and recognized, for example Clark against Gabriel in the context of pre-induction judicial review, that the purpose of the selective service system is to raise large numbers of men without litigious interruptions which Congress has, I think, reasonably believed would impair that obligation.

There's some further suggestion in the legislative history of 1967 another congressional feeling which again, I think is reasonable, that the more formalize these proceedings become, the greater advantage is given to those who, for one reason or another, are in a better position to take advantage of formalized proceedings.

Justice John M. Harlan: Do you happen to know whether these Draft Boards -- to what extent do the Draft Boards themselves oppose to lawyers?

Mr. James Van R. Springer: I don't have any figures on that.

I would assume that a substantial percentage, just a substantial number of people in jobs like that tend to be lawyers.

A substantial number are, but they are by no means required to be lawyers or, as I think, chosen.

Justice John M. Harlan: Is the lawyer of the Board?

Mr. James Van R. Springer: No, there is not and that again is I think a problem that Congress could reasonably consider.

If the lawyer comes in on behalf -- before a Board of part time laymen on behalf of a registrant to argue with them about what the Welsh case means, for example, I think the Board would rightly feel that if it should have somebody to give it comparable advice --

Justice William J. Brennan: Well, Mr. Springer --

Mr. James Van R. Springer: Which, again, tends to --

Justice William J. Brennan: But in each state set up to some legal representation before the selective services?

Mr. James Van R. Springer: Well, there is a -- of course, as a national office, there are state offices.

I believe there may be lawyers in the state offices, but --

Justice William J. Brennan: I thought there were always lawyers?

Mr. James Van R. Springer: I think -- there are experts there to give --

Justice William J. Brennan: The Boards get their legal advice I thought --

Mr. James Van R. Springer: Yes, but there is no provision under the existing system for --

Justice William J. Brennan: For the Board to have a lawyer assigned?

Mr. James Van R. Springer: To be with at its meaning, except that there is a provision for the appeal agent.

There's supposed to be one for each Board and he may attend meetings at the request of the Board, but he is an unpaid volunteer.

I think it would quite drastically change the set up which is something that has been basically in existence, as I indicated before, for 30 years.

It would rather substantially change the setup, I think, if you started to make these adversary proceedings by having lawyers coming in performing the kind of job that a lawyer ordinarily does, and Congress has made the express decision that it did not want to have that happen.

And, as articulated, I think a reasonable basis for so deciding.

Of course, the appellee relies quite heavily on this Court's decision last term in the Goldberg and Kelley case on procedural rights with respect to welfare terminations.

I think, as with all of these matters, you can't proceed by a process of deductive reasoning.

You can't say that, as he does, the personal appearance is obviously an important matter for the draft registrant.

It's a matter in which his personal rights are determined, therefore, it is an adjudicative hearing.

In every adjudicative hearing, you must have a lawyer because the Court said so in Goldberg against Kelley, therefore, there must be a lawyer.

And, if the whole premise of the Goldberg versus Kelley decision is that you balance each situation, the result there was a relatively limited kind of hearing, where to be sure, the Court did say a lawyer should be present, but I think the draft situation can't be deduced from that.

I think it's a matter of making the same kind of balancing process in the draft context, which is something that Congress has done.

For the reasons that I've indicated, I think that cannot said to be so in consistent with -- so in reasonable or so consistent with principles of fundamental fairness that it should be held to be a violation of the Due Process Clause.

Justice Potter Stewart: As a practical matter, what's been going on out in the Northern District of California since the date of the District Court's decision?

I do know that, since this decision, the Ninth Circuit has had occasion to -- this was District Court decision and the Ninth Circuit has had occasion to reject the position taken by -- of the district judge, Judge Peckham, in this case.

I confess that I haven't determined what the practical effect of the conflict is.

Presumably, the Boards can rely on the Ninth Circuit rather than on the District Court.

I think, in this context, it's I think, perhaps the appellee overestimates, and it's easy to overestimate the range of the decision making discretion that a Local Board has.

In this regard, there have been a number of quite significant changes in the recent years and, in fact, recent months.

For example, this Court's Newton Act decision last term took away from the Boards the entire power that they had previously to reclassify people whom they found to be delinquents, which was obviously an area with considerable discretion which the Court felt that the Boards hadn't been given, so that area is out.

As of last spring, occupational deferments were discontinued, so the questions of what's an essential occupation and what is not are not now matters that the Boards have to consider.

Chief Justice Warren E. Burger: That was by administrative directive, was it?

Mr. James Van R. Springer: Yes, that was by executive order, these regulations are made by the President.

In last summer, in the conscientious objective area which we are dealing with here, following the decision in Welsh, specifically last term, the national director of selective service put out a two-page statement of the considerations that a Board should take into account in determining whether a man is a conscientious objector which, I think, boils down – there's -- I think they are quite comparable to the kind of instructions that a trial judge might give to a jury.

So, the Board is focused, and it's focused principally on the sincerity issue in the conscientious objective area -- conscientious objector area and a question which I think has to be answered necessarily in terms of what the registrant says out of his own mouth.

I think it's not a matter of confronting adverse witnesses.

It's not a matter of dealing with self-incrimination problems or forfeiting rights, and there's nobody there arguing against him.

Basically, his job in a CO case is to come in and say words to the Board which will convince the Board of the nature of his beliefs and of the sincerity of it.

Justice William J. Brennan: Mr. Springer, did you say that the Ninth Circuit has already taken a view contrary to Judge Peckham?

Mr. James Van R. Springer: Yes, it has, in a case which we cite --

Justice William J. Brennan: I see.

Mr. James Van R. Springer: -- in our brief.

Justice William J. Brennan: So, if we say we have no jurisdiction, it goes to the Ninth Circuit then?

Mr. James Van R. Springer: Yes, sir.

I believe that it's possible to have a different panel of the Ninth Circuit.

Justice William J. Brennan: You know what the result is going to be then?

Mr. James Van R. Springer: If you have that panel, I suppose that they might be coming en banc question --

Justice William J. Brennan: Yes.

Mr. James Van R. Springer: -- which might be resolved differently in that court.

Chief Justice Warren E. Burger: Does that enter in any way in the jurisdictional problem?

Do we consider the consequences of a jurisdictional decision when we make it?

Mr. James Van R. Springer: No, I think the question answers itself.

I think that that's not so.

So I think, in light of the -- in summary, in light of the unique kind of situation we have in the draft classification process and the unique role of the personal appearance, I think it's not enough to say that since every other kind of administrative proceeding or most others allow counsel that counsel should be allowed here.

I think the Court, as it did in Goldberg, is called upon to weigh the unique factors in the selective service system in order to determine what fundamental fairness is there.

I'd like to, if I have a minute or two left, I'd like to reserve it for rebuttal.

Chief Justice Warren E. Burger: Mr. Karpatkin.

Argument of Marvin M. Karpatkin

Mr. Marvin M. Karpatkin: Mr. Chief Justice and may it please the Court.

This is the third selective service case which the Supreme Court is hearing this week.

Unlike Gillette and Negre, which were argued yesterday however, this case does not involve cosmic questions of the definition of a man's conscience, of the nature of his religious beliefs the character of conscientious objection, the relationship between total objection and selective objection.

It involves, rather, the more mundane, but no less you pick with this question of fairness in the operation of the selective service system.

The administrative agency which determines which man shall be drafted and which man shall not.

Last term, this Court was deeply divided in a case which raised the question of the proper definition of conscientious objection and the relationship between the religious and the non-religious objector, I'm referring, of course, to the Welsh case.

But this Court was unanimous in its declaration in the Malloy case that full and fair administrative review is indispensible to the fair operation of the selective service system.

I respectfully submit that that the backdrop in the Malloy case, as is likewise the backdrop in this case, is the extremely limited judicial review of selective service administrative decisions.

This is a standard of judicial review which this Court has declared since the Estep case in 1946 and continues to reiterate whenever there is a selective case before it.

That the decisions of the Local Boards and the Appeal Boards of the selective service system must be approved by the Courts even if they are erroneous decisions so long as they are not without a basis in fact.

I submit that the essence of this case is the emergence of the doctrine that the selective service system is to be treated like any other administrative agency which adjudicates personal and property rights and that it can operate fairly unless only if the person affected has the right to a meaningful hearing before action is taken which affects him.

And, that under a parade of decisions of this Court and of other Courts, there is no meaningful hearing unless the person who was subjected to these sanctions by an administrative agency, who was subjected to these deprivations and effects upon his personal and property rights, has the right to the advice, the assistance, and the presence of counsel at the scene of such hearing.

This is the essence of the decision of Judge Peckham below, and I respectfully disagree with the Solicitor General when the Solicitor General states that Judge Peckham's decision in the Northern District of California was based only on the question of whether or not the regulation was authorized by statute.

The same words which Judge Peckham uses to declare the denial of counsel, that is the regulation prohibiting the appearance of counsel as not being authorized by Congress, is likewise the same words which Judge Peckham uses in concluding that the prohibition of counsel is without constitutional sanction.

I may say finally, in terms of the setting of this case, that this case also involves, I respectfully submit, the exorcising of a myth.

The myth that selective service Local Boards are not administrative tribunals like hundreds or thousands of other administrative tribunals around the country, federal and state, but some kind of informal (Inaudible) after-church discussion groups, colloquially called little groups of neighbors and that, therefore, they should not be held to the same standards as other agencies which affect personal and property rights.

This myth, I submit, was always based on a fiction, but the myth has now been officially disembodied by a change in the regulations mentioned in our brief, which I will get to later in my argument, and the time has long come to be finally exorcised.

If I may touch upon the jurisdictional question; frankly, the first point which I was going to make was that which I believe came out in colloquy between Mr. Justice Brennan and my learned adversary.

The Ninth Circuit has quite clearly indicated that it disagrees with the position of Judge Peckham.

It indicated that in several decisions, which the government cites in its brief, prior to his decision and at least one decision subsequent thereto.

Now, the question was asked.

Why didn't the government --

Justice Potter Stewart: What is that, the one decision subsequent to Judge Peckham's decision?

The question before this Court, I submit, on the jurisdictional point is whether the government was right when it first took the position that there was exclusive and mandatory jurisdiction in this Court or whether the government was right after it reconsidered it and took the position that it should remand and have a go at the Ninth Circuit.

While, of course, I don't deny for one minute that the Department of Justice and the Solicitor General's Office are as interested in the Administration of Justice as those of us in the Defense Bar, the fact is that one cannot overlook the fact that might -- that any experienced lawyer would recognize the inevitability of the Ninth Circuit overruling Judge Peckham and I could not believe that the government was unaware of that.

If the question is asked as to why this case was brought to the Supreme Court in the first place, I would refer the Court to appendix C to the government's brief which is a letter written by the distinguished former director of the selective service system, General Louise B. Hershey, addressed to the Attorney General.

This is reprinted at pages 74 and 75 of the government's brief.

General Hershey takes the view “the effect of this decision, if allowed to stand unchallenged, would be to place an intolerable burden upon the administration of the selective service system in the Northern District of California, and if extended to other jurisdictions would result in constructive paralysis of the selective service system in the performance of its mission of procurement of manpower for the Department of Defense.”

Then, it cites various decisions, including the Ninth Circuit.

And then states the Congress of the United States in enacting and re-enacting the selective service laws during the past 29 years have been well-aware of those provisions of the selective service regulations which discourage the presence of legal counsel for registrants.

Then finally, “I am, therefore, making this formal request on you under the authority given to me in the statute to proceed as expeditiously as possible and asking for an appeal to the Supreme Court of the United States.”

Now may it please the Court, as I read all of the opinions in the Sisson case and in the Mersky case and in the Blue case and in all of the other cases, and grapple with the same problems that the Solicitor General's Office grapples with, one thing I think comes clear, and that is that it was the -- it is the philosophy of the Criminal Appeals Act that where there are truly vital important constitutional questions in criminal cases, that the path should be smooth for their being resolved by the Supreme Court immediately and without the intermediate step of the Courts of Appeals.

And, I suggest that where the --

Justice Byron R. White: Like in Sisson?

Mr. Marvin M. Karpatkin: Well, I think that the Sisson case, Mr. Justice White, went off on a number of other problems.

Obviously, the man appeared before the jury and there was jeopardy in that case, but it seems that where the man who has been heading the selective service system for 30 years virtually screams to high heaven that the system is going to be destroyed and begs the Attorney General to take the case directly to this Court, that whether he is right or wrong, and of course we say that he's wrong on the merits, that that is the kind of situation which Congress had in mind in declaring as a philosophy of the Criminal Appeals Act that major constitutional decisions will come to this Court directly.

Justice Potter Stewart: The motion filed here by the government to re -- to send the case to the Court of Appeals came before the Court of Appeals decision in the Evans case, did it not?

As I look at the chronology, I think the motion was filed here on January 16 of this year and the Evans decision was in April of this year.

Mr. Marvin M. Karpatkin: That is correct, Mr. Justice Stewart.

Chief Justice Warren E. Burger: Wasn't the motion on jurisdiction made by the government earlier than January of 1970, I thought it was made last fall?

Mr. Marvin M. Karpatkin: The government's motion to remand, Mr. Chief Justice, which I have before me is dated December 1969.

The date is crossed out and it's stamped January 1970.

Chief Justice Warren E. Burger: Well, wasn't there an earlier motion with the same effect though?

Mr. Marvin M. Karpatkin: The practical consideration, of course, is that which was revealed in the colloquy between Mr. Justice Brennan and Mr. Springer that if the government succeeds on its jurisdictional point, the case will go to the Ninth Circuit and the decision of the Ninth Circuit has been clearly foreshadowed by the Evans case and others.

And then, of course, the probability is that we will be back here again, but this time we will be back as supplicants, as petitioners for certiorari rather than as parties with a legal right to a decision by the highest Court of the land.

Justice Thurgood Marshall: Is it not Mr. Springer's point that your position is that no crime is committed?

Mr. Marvin M. Karpatkin: Mr. Justice Marshall, our position is that the facts alleged in the indictment did indeed occur, and our position is that there was in fact an induction refusal as indeed is not contested and is really contested in conscientious objector cases.

Justice Thurgood Marshall: The only crime could've been that it was an invalid induction law.

It's the only way to find it, isn't that what you mean?

Do you say that the induction law was in that?

Mr. Marvin M. Karpatkin: We do indeed, but it was --

Justice Thurgood Marshall: There's no doubt.

Mr. Marvin M. Karpatkin: If I can go back to my understanding of the position taken by the dissenters in the Mersky case, Mr. Justice Marshall, they spoke for the traditional view of the motion at Bar provision and likened it to either the specific ancient pleas, if I'm not being prejudicial in using that word, the specific venerable pleas such as the statute of limitations, (Inaudible) convict, pardon, and suggested that it has to be something which is of the nature of confession and avoidance.

Now, I suggest that confession and avoidance, as I've always understood it as a matter of pleading whether it's common law pleading or modern pleading, is that you admit the acts of the indictment, but you say that there is something else which gives you a legal right to be exonerated, notwithstanding the admission of the acts of the indictment.

Justice Thurgood Marshall: Well, the only difference is as to whether or not the valid induction order is a part of the Act.

The Solicitor General says it is a part and you say it's not a part.

The Act is only to pay to take the one step further, is that your position?

Mr. Marvin M. Karpatkin: That is our position, Mr. Justice Marshall.

May I also point out that the indictment itself refers to all of the selective service regulations or at least to the applicable selective service regulations as being part of the crime which is -- of which the defendant is accused.

And, the indictment specifically specifies the whole body of regulations, including the regulations governing the rights to personal appearance in the absence of counsel thereat.

Of course, under the view of motion in Bar which was taken by Mr. Justice Brennan in his concurring opinion in the Mersky case, we should confine the medieval pleading notions to the dusty bookshelves, if I recall the adjectives correctly, and that a motion in Bar exists where there is a termination of the cause and an exculpation of the defendant and, of course, that clearly occurred in this case.

In this case, the judge decided that the regulation was not authorized by the statute in the first instance.

In the second instance, he decided that the regulation in any event could not have been authorized, that it was beyond constitutional power because of the nature of this type of a hearing.

And, in either case, there was a major decision concerning unconstitutionality of a vital part of the Selective Service Administration.

I would take the position that all of the scholarly and interesting discussion in Sisson really does not take our case any further than it was before, I say with respect.

I think that we are exactly the same situation which Mr. Justice Harlan projected in the Blue case where the question is do we apply the -- Mr. Justice Brennan's standard of the Mersky case or do we apply the standard of Mr. Justice Stewart and the other dissenters in the Mersky case and that under any standard whether it's the anything which exculpate standard or the confession and avoidance standard that just as Blue made it to the Supreme Court directly, it had a right to in that case, Weller should have a right to make it directly to the Supreme Court in this case.

Justice Harry A. Blackmun: Mr. Karpatkin, suppose the government had, however, appealed to the Ninth Circuit, what would have been your avenue for relief, a way of getting here, where would you be, in the Ninth Circuit?

Mr. Marvin M. Karpatkin: I would suppose, Mr. Justice Blackmun, that we would probably make a motion to dismiss the appeal on the grounds that there was direct and exclusive jurisdiction in the Supreme Court of the United States.

Justice Harry A. Blackmun: So that you would interpret 8-3731 to, where it says an appeal may be taken in the mandatory language there?

Mr. Marvin M. Karpatkin: My friend is showing me the statute, yes.

Well, I believe something similar to this happened in the Ninth Circuit in the case of United States against Fix which is cited without very much discussion in the government's brief, and I believe that the Ninth Circuit in that case, recognizing the dilemma, certified the question directly to this Court.

Now, so much for the --

Justice Harry A. Blackmun: Is that the -- is that analogy by certification, certainly distinct from any concern that 3731 was mandatory?

Mr. Marvin M. Karpatkin: I believe that the Ninth Circuit expressed its uncertainty about that in that case, Mr. Justice Blackmun.

The other aspect of the jurisdictional point concerns statutory construction.

Now, here, I believe that we rest firmly with the majority opinion in Mersky.

Mersky is clear, as I see it, that where a regulation is so closely linked or so closely coupled or associated with the statute that the validity of one must of course be determinative of the validity of the other, that what the Court has done in dismissing the indictment based upon a construction of such a statute-cum-regulation brings it within the statutory construction language of 3731.

Justice Byron R. White: Do I understand correctly that here the statute was silent as to whether or not counsel could or couldn't be provided by the executive?

Mr. Marvin M. Karpatkin: Absolutely silent, Mr. Justice White.

Justice Byron R. White: And the regulation expressly says that he may not have counsel.

Mr. Marvin M. Karpatkin: Yes, Mr. Justice White.

Justice Byron R. White: And I suppose the District Judge says there's some rule of law, which in this context, which means that a silent statute just doesn't authorize the regulation.

Now is that a construction of the statute?

Mr. Marvin M. Karpatkin: Well, I think it very much is a construction of the statute, but I believe that the district judge went further than that.

Justice Byron R. White: You mean because he read it and said it was silent, that's a construction or that --

Mr. Marvin M. Karpatkin: As I see what the district judge did, Mr. Justice White, is that he looked to the provisions of the statute --

Justice Byron R. White: And found them silent?

Mr. Marvin M. Karpatkin: But, he did find that the statute directed the President to select them for military service in a fair and impartial manner.

He did find that the statute direct -- authorized and directed the President to set up a network of Local Boards and Appeal Boards.

He did find that the statute authorized and directed these Local Boards to make -- to hear and determine all questions concerning inclusions, exemptions, and deference.

And, he did specifically find that the statute authorized the President to make the necessary rules and regulations.

Justice Byron R. White: Yes.

Mr. Marvin M. Karpatkin: It seems to me --

Justice Byron R. White: But that isn't what -- that isn't why the regulation wasn't authorized?

Mr. Marvin M. Karpatkin: Well, as a matter of law, I certainly feel that the district judge was absolutely correct in invoking the principle of Greene against McElroy and Hannah against Larche and many other decisions of this Court to find that wherever something gets so close to a constitutional right, Congress must act explicitly.

Justice Byron R. White: Well, that's not construing the statute.

That's just saying that there's a principle about regulations, that some are good and some are bad depending on how close they are to constitutional issues, and unless the statute expressly authorizes them --

Mr. Marvin M. Karpatkin: Well, it seemed to me -- it seems to me, again, Mr. Justice White, that the District Judge was looking with a magnifying glass or a microscope from the beginning of the statute to the end, looking through every clause which could possibly have some relationship with it and he found that there was none.

Justice Byron R. White: But if a district judge reads a decision of this Court which says that any regulation which denies counsel must at least have express congressional authorization.

He looks at the statute, he doesn't find any authorization, and he says the regulation is invalid.

Now, is that a construction of the statute or is it basing his decision on a decision of this Court?

Mr. Marvin M. Karpatkin: Well, I believe, since the government takes the position that the statute properly construed, should indicate congressional acquiescence in the existing pattern of denial of counsel that the district, and since I'm sure this position was ably urged by the United States Attorney in the Northern District of California, the district judge had to examine the statute and to see it should be construed from the point of view advocated by the government.

I guess, perhaps, there may be some uncertainty.

Justice Byron R. White: Are you saying that -- what you're saying is that the government is either -- is arguing both sides of the road when it says that it's -- the statute is silent on the one hand, but it isn't silent on the other because of congressional acquiescence?

I was going to say, indeed, that to suit its purposes on the congressional authorization point, the government tries to couple or link the statute in the regulation as closely together as possible.

Indeed, it tries to fuse them together with the best welding material which it has, but for purpose of meeting its jurisdictional argument, the government tries to separate them, and this leads to a little bit of schizophrenia in the government's brief because they refer -- at one place, they refer to the statute and regulation combined as the law of selective service.

It obviously suits their purpose to argue that this is the law of selective service on the merits while it doesn't suit their purpose to do so on the jurisdictional point.

I think, though, that the final point on jurisdiction has to do with the government's concession, as it must concede that there was direct jurisdiction in this Court on statutory construction of the Eisdorfer case.

The government argues that there are some differences between Eisdorfer in this case because Eisdorfer involved the delinquency regulations, while this case involves a regulation prohibiting counsel.

Well, I -- the government says that there is this difference, but doesn't say why this makes a difference.

It argues that one is more remote than another, but I submit that the delinquency regulations, as anyone who has read the Oestereich and Gutknecht and Breen decisions of this Court knows, involves procedure perhaps even more so than it involves substance and the regulation involved in this case is obviously also a procedural regulation.

Now --

Justice John M. Harlan: The Eisdorfer case wasn't a decision of this Court rather a dismissal under Rule 16?

Mr. Marvin M. Karpatkin: It certainly was, Mr. Justice Harlan.

Yes, it was not a decision of this Court.

I'm pointing out the government is trying to explain the logic in its position and I believe they have a lot of explaining to do.

If I may move now to the point on the merits; we start with the proposition announced by this Court in Greene against McElroy, and foreshadowed in previous decisions and followed in later decisions that since only Congress can draft, only Congress can deny the right of counsel as part of the drafting process.

It seems that this is self-evident and the government almost admits it, except for one place, page 22 of its brief where it seems to suggest that may be this is not so and that may be there are no limits on presidential power to deny counsel or to otherwise structure the hearings.

And, the implication perhaps is that maybe there are not even any limits on other presidential war powers, a point which the government tantalizingly suggests and doesn't move on.

And then, once again, it talks about non-jud -- non-justiciability and to my surprise, the case which it cited is an order of this Court denying certiorari.

And, of course, I was taught from my first breath of constitutional law that one should never see a denial of a petition for certiorari as having any kind of significance on the merits, but perhaps when -- perhaps that's the best thing that the government could cite for this preposition, so they cited it.

The – Moore --

Justice Byron R. White: What's the case?

Mr. Marvin M. Karpatkin: I'm referring, Mr. Justice White, to the government's -- the footnote on page 22 of the government's brief where Moore against McNamara, an order of this Court denying certiorari, is presumably cited in favor of the proposition that what the government regards as non-justiciable controversies of a political nature should not properly be brought before the Court.

The -- it seems that, as we read the Greene case, the requirement of explicit authorization before there may be a tampering with fundamental constitutional rights, is so clear that it is hard to see what the government is belaboring except that one must identify what appears to be a complete nimble effort on the part of the government to read the Greene case to stand for its opposite.

The government seems to read the Greene case as saying that purposeful inaction means the same thing as action, but it seems quite clear to me, from anyone who reads it, that the Greene Case specifically said that mere acquiescence or inaction is sufficient -- is insufficient, that Congress must specifically authorize a departure from a fundamental constitutional right.

Now, the government mentions Hannah against Larche, which was of course the decision where this Court split 5-4 on the amount of due process which was available to witnesses before the Civil Rights Commission.

Now, it seems to me that the decision in Hannah against Larche is completely different from that which we have here.

In Hannah against Larche, there was indeed -- there were indeed two proposals before Congress, two complete proposals.

One which provided for a greater measure of due process and another which provide for a lesser measure of due process and both, interestingly, provided for rights of counsel, though to different extents.

And, the legislative history of Hannah against Larche is clearly revealed by the majority decision of this Court, so that the legislative history of the Civil Rights Commission indicated that Congress explicitly selected one of these schemes and specifically rejected the other scheme.

The argument of congressional acquiescence, was not followed in this Court in Greene, not followed in this Court in 2C, a selective service matter though not involving Selective Service Administration last year -- last term.

The government finally argues about the legislative history of the 1967 Act.

It appears to us as we read the same legislative history that it means a great deal other than what the government says it means.

Of course, there were extensive hearings, but as we recall and as the Court may well take judicial notice, these hearings were essentially about student defermance, about the lottery, about occupational defermance.

Very little attention was given to selective service procedures, very little attention was given to conscientious objection.

The government argues -- points to the testimony given by General Hershey in an interim report which was prepared, but as we point out in our brief, the House Armed Services Committee expressly disclaimed that it was any reflection of General Hershey's views, as indeed it might for General Hershey distinguished himself at these hearings by making the statement that he was opposed to any amendments to the law because “you can do almost anything under this law which is more than you can say for a great many laws that are on the books.

I can understand the House Armed Services Committee wishing to disassociate itself with that sentiment.”

The Floor debates are not anymore helpful.

My learned friend is wrong when he says that there was a debate in the Floor of the House concerning counsel at Local Boards.

The proposal made by Congressman Castermire was exclusively confined to Appeal Boards.

There was no discussion at all on the Floor of the House about Local Boards.

It is true indeed that the Morse amendment was entered on the Floor of the Senate, but it is quite clear I believe, as we point out in our brief, that Senator Morse who raised the question and Senator Russell, the Chairman of the Senate Armed Services Committee, and other senators who participated in the debate were, and I must say this with all respect, acting upon complete misinformation as to what was involved.

We indicate the colloquy on page 34 of our brief, that Senator Russell, as the Chairman of the Senate Committee, was stating quite incorrectly that the government appeals agent is independent and does not have divided loyalty, and stated quite clearly that there is a -- that there are separate counsel available for the Board and for the registrant.

Now, this is clearly wrong.

We indicate in our brief, in the long footnote on page 35 a number of other places where they were just clear factual error, clear misinformation on the part of the senators engaged in this debate.

Now, what does one make of all this?

I suggest that this is an apt illustration of what Mr. Justice Charac -- Mr. Justice Jackson characterized the Floor debates as “not always distinguished for candor or accuracy.”

The -- and perhaps, illustrates the wisdom of the doctrine that one should not resort to legislative history except where the face of the Act is inescapably ambiguous, but here, the face of the Act is not inescapably ambiguous, it is just silent on the subject.

Chief Justice Warren E. Burger: Well, silence sometimes is the source of the ambiguity, is it not?

Mr. Marvin M. Karpatkin: That is quite so, Mr. Chief Justice, yes.

But at the very least, if I must retreat from my position, though I don't think I'm obliged to, it seems that it is hardly the clear showing which the government argues is clear congressional action.

I do not think that that occurred in this case by a long shot, and I think that the government's statements about legislative history will -- should be and indeed will be read in the light of the actual legislative history and the contentions which we make.

The essential constitutional point which we make, may it please the Court, is that a Local Board personal appearance is such a vital and necessary part of the procedure whereby young persons are ordered to submit themselves to the demands of military service that it must be properly reviewed as an adjudicative proceeding and, indeed, as this word has been used in many Court decisions, as an adversary proceeding.

We start with that same Local Board personal appearance.

As my adversary pointed out, this is a formalized part of the structure.

Indeed, it is one of the few things which is formal within the structure.

It is a means of contest.

It is an arena which is created for the registrant who was dissatisfied with this classification to attempt to come forth and secure a change in his classification. Everything else, it can almost be stated without hazard, is by supplication, is by discretion with regard to selective service.

This is one of the few guaranteed rights which the regulatory scheme sets up, the right to contest your classification and to have a personal appearance for the purpose of contesting it.

Justice John M. Harlan: Does Judge Peckham's decision stand alone on the decisions on this question in the lower Courts?

Mr. Marvin M. Karpatkin: There are -- the short answer to your question is yes, Mr. Justice Harlan, but I must observe that, and we cite in our brief, there are about half-a-dozen decisions of judges who have indicated great discomfort with the denial of counsel and quite clearly indicated how it produces injustice in many cases.

I have referred to many decisions by district judges and a few decisions by Courts of Appeals.

The -- it is by its nature an adversary proceeding because if one need not go further, then recall the language of Justice Brandeis in the Abilene Railroad case which we quote on page 42 of our brief that even in a case where the determination must be made as to which of two carriers would get a more favorable rate, “every proceeding is adversary in substance if it may result in an order in favor of one carrier as against another,” obviously in favor or one registrant as against another.

Justice Thurgood Marshall: Well, who's the adversary here?

Mr. Marvin M. Karpatkin: There are two ways of responding to that question, Mr. Justice Marshall.

One can indeed say that the Local Board and the power which it represents is adversary to the young man.

Justice Thurgood Marshall: Why don't you object to the prosecutor and jury, all judge all the same, you can't argue that.

Mr. Marvin M. Karpatkin: Because, Mr. Justice Marshall, there are --

Justice Thurgood Marshall: Because you can't.

Mr. Marvin M. Karpatkin: There is a difference between the administrative process and the judicial process.

Justice Thurgood Marshall: Because you can't.

Mr. Marvin M. Karpatkin: I can't, but I would -- I can't and I wouldn't.

Justice Thurgood Marshall: Well, the only people there are the Board, the Clerk, and the man.

So, it's got to be the Clerk or the Board in order for you to get your adversary.

You put so much weight on these adversary procedures.

Mr. Marvin M. Karpatkin: What I'm suggesting, Mr. Justice Marshall, is that, as viewed by Mr. Justice Brandeis in the Abilene Railroad case, that is only one way of determining whether something is adversary or not, that whether a choice must be made between two contestants as to who gets the benefit and who gets the burden, that that is an adversary proceeding.

Justice Thurgood Marshall: Well, that's what I'm trying to find, who are the two contestants?

Mr. Marvin M. Karpatkin: The contestant in the sense --

Justice Thurgood Marshall: You are using your language of Justice Brandeis, I'm trying to find out who's the other one?

Mr. Marvin M. Karpatkin: I would suggest that the contestant is any other young man who may get that particular deferment and any other young man who may be called if that deferment is granted.

Chief Justice Warren E. Burger: But he isn't there and that'd be the negation of the adversary process to treat as a party someone who isn't there.

Mr. Marvin M. Karpatkin: At the time the -- if the rule for which we are contending is adopted then at the time that he receives his I-A classification, preliminary to report for induction, he will have an opportunity to have a personal appearance and to indicate the grounds for his contest and to have the opportunity for a meaningful hearing.

Chief Justice Warren E. Burger: But Justice Brandeis was talking about the tripod situation where you had two contending parties and a trier.

Here, you do not have or I think Justice Marshall is concerned about the same thing, where are the two contending parties and the trier, the three legs on the stool?

Mr. Marvin M. Karpatkin: I'm saying that the philosophy of it, as I read the Abilene case, is that wherever a benefit may be bestowed upon one person rather than another, that even if that person is not before the tribunal, he is in an adversary posture.

Chief Justice Warren E. Burger: But the Congress, in both houses filled with great many lawyers, Mr. Karpatkin, certainly when they drafted this, didn't see it as an adversary proceeding in that sense, did they?

Mr. Marvin M. Karpatkin: It would not appear to have been when it was drafted in 1940 and the regulations that we have are still the harbingers from the 1940 statute, but a great deal has happened in the evolution of standards of administrative due process as a result of the decisions of this Court and of other Courts since then.

And, this also answers why there had been a large number of District Court and Court of Appeals decisions, all of which we seek to distinguish in our brief, particularly in the early days which almost stated as an ipse dixit, that of course, there is no right to counsel, who would ever think of it?

But, under the rulings of this Court in Goldberg against Kelley and In re Gault and in a number of other decisions which we cite in our brief, it seems to me that there is an emerging recognition of the fact that whenever any person's private or property rights may be subjected to any deprivation, may be subjected to any loss, may have any baleful effect upon them, that there is a right to a hearing -- to a meaningful hearing and that an essence of a meaningful hearing is the right to be heard and the right to be heard with counsel.

And, I don't know that it's necessary to rehearse the catalog of decisions where that has been held.

The -- we have set forth in our brief a long -- a discussion of various possible classifications, various possible classifications which the Local Board may give and we indicate in each one of them, there are questions of law, as well as questions of fact which must be decided.

Take, for example, conscientious objection.

Local Board must decide if someone is a I-O or a I-A.

A Local Board must decide whether someone is a religious or ethical or moral objector within the context of the Seeger, Sicurella and Welsh decisions, or whether someone's objection is based on policy, pragmatism, or expediency and consequently is not entitled to conscientious objection.

The Local Board must decide if a prima facie case has been presented, so as to justify reopening, showing that also as a question of law.

The Local Board must decide if there's been a post induction maturation of conscientious objector views raising the questions that are before this Court in the Ellort case, set for argument I believe for next month.

The Local Board must decide whether there has been a good -- whether a registrant's statements about the readiness to use self-defense come within the exception of the Sicurella case or whether these statements indicated general objection -- indicate a consistency with a general statement of conscientious objection.

And, of course, perforce on all of these questions, as this Court has reminded us over and over again since the Witmer case, a Board must decide the basic question of sincerity.

Now, the incidence of a personal appearance; the regulations provide for the administration of an oath for the subpoena power.

Words like evidence and hearing and jurisdiction are used.

The regulations bristle with these characteristics of administrative practice.

We do cite in the brief some decisions where Courts have recognized the adversary character of selective service Local Boards, the adjudicative character and the fact that the things which they do affect people's personal and property rights.

It's a sheer fiction, I suggest.

Justice Potter Stewart: This personal appearance, this right of personal appearance, is a creature of statute, isn't it?

Justice Potter Stewart: So it too is a creature of the Selective Service Regulation?

Mr. Marvin M. Karpatkin: That is correct, Mr. Justice Stewart.

Justice Potter Stewart: Well, it's no doubt secular reasoning, and I'm sure that's the answer to what my question is going to suggest.

If the selective service, in creating this right by a statute, had considered it anything like the adversary hearing that you're trying your -- in your submission you're saying that it is, it would follow of course that it couldn't possibly have promulgated the regulation at issue, could it?

Mr. Marvin M. Karpatkin: Well, I guess it's not the first --

Justice Potter Stewart: If the answer is that's secular reason.

Mr. Marvin M. Karpatkin: Yes, and also it's not the first set of regulations which betray inconsistencies.

On the one hand, the regulation talks about oaths and witnesses and adversaries and subpoenas and jurisdictions and, on the other hand, the regulation says no counsel.

Now, this does indeed take us to the special, what I call, the special mythology of selective service.

We had a little project in my office this summer.

With the assistance of a number of law students, we presume to read the statutes and the regulations governing every federal administrative agency searching for similar regulations dealing with right of counsel, and our findings are revealed in our brief.

We found some 36 agencies which expressly provided for the right of counsel either by statute or regulations.

We did not find a single other agency in the system with the exception of the selective service system, where either by statute or regulation, there was an express prohibition of counsel under any circumstances.

Now, it seems to me that there has to be some better argument for sustaining this “everybody is out of step except selective service” attitude other than the quaint notion that it's just little groups of neighbors sitting around the general store and deciding what's best for neighbor John's son.

Now, the fact is that a whole series of cases in the District Courts and one in this Court, where unfortunately, certiorari was denied, presented very, very strong proof that many of the Local Board members do not reside in their districts.

And the response by the selective service system to this avalanche of cases has been simply to amend the regulation, to rescind the regulation requiring Local Board members, wherever practicable, to reside within the geographical jurisdiction of their Boards.

Chief Justice Warren E. Burger: What about the matter Justice Stewart was pursuing?

Do I understand you to concede that the -- administratively, the regulations could be amendment so as to eliminate any personal appearance at all?

Mr. Marvin M. Karpatkin: Oh!

No, Mr. Chief Justice.

If I conceded that, I certainly never intended to do it.

Chief Justice Warren E. Burger: Well, I got a hint of it, that was all, and I wanted to be sure of it.

Mr. Marvin M. Karpatkin: No.

Indeed, it's --

Chief Justice Warren E. Burger: If it's the creature -- if the regulation is a creature of administrative action, things so rot may be unrot so, may they not?

It will be taking -- unless something is substituted which is the equivalent thereof, it's taking something -- the only thing that, seems to me, equivalent to the right to be heard with counsel is the right to be heard at all.

Chief Justice Warren E. Burger: Well then of necessity, you're suggesting that when the administrative regulations were promulgated the purpose was to give effect to a constitutional right to be heard.

Mr. Marvin M. Karpatkin: I could not, in truth say that that was the purpose in 1940, Mr. Chief Justice.

I think the purpose in 1940 was to quickly set up a set of regulations to deal with a total national mobilization and an impending emergency problem, and that nobody really thought much about what the constitution required.

Chief Justice Warren E. Burger: But sometime in between 1940 and now, the constitution has intruded itself with the aid of the Court?

Mr. Marvin M. Karpatkin: I would say that the recognition of the constitutional compulsions had been true to themselves and indeed, with each term of this Court, the recognition increases.

And, I would hope that there would be a similar increase in recognition resulting from this case.

May I just point out finally that the right to counsel is already recognized in certain aspects of conscientious objector cases.

It is recognized by the military in all of the in-service procedures, something which was noted by Judge Peckham and not responded to by the government.

And, it was recognized for a period of 20 years, may it please the Court, under the old hearings held before the Department of Justice hearing officers.

I know, I participated in a number of those hearings in 1965 and 1966 and 1967 and indeed it is clear in the Nugent case and it is clear in the four decisions by this Court in 1955 that these were all -- these all had to deal with the proper status of due process in the Department of Justice hearings where it was acknowledged that there was a right of counsel.

Now, finally, in response to the cries of alarm which are reflected in the letter by General Hershey in the record and reflected rather uncritically, I respectfully suggest, in the government's brief and their arguments that this will be the end of the selective service system, this will be paralysis, the nation will be left defenseless and similar hand ringing.

I think it's instructive to the Court and, with the Court's permission, I should like to read into the record and I'll make copies available through the clerk of a recent communication by the present National Director of the Selective Service System.

Chief Justice Warren E. Burger: Why don't you give us the essence of it in view of the hour and then put it in and file it with us.

Mr. Marvin M. Karpatkin: Yes.

The essence of it is one sentence.

I've advised the government of my intention to read this.

We are aware of course of cases currently before the Supreme Court which deal with selective conscientious objection and representation of registrants by counsel.

It is our hope that, should changes be made by the Court in either of these areas, you will be able to help us meet the resulting challenges.

While hardly an enthusiastic endorsement of my position, it is quite different from the cry that the selective service system will be dismembered if this Court decides that there's a constitutional right of --

Justice Potter Stewart: That's a letter to you?

Mr. Marvin M. Karpatkin: This is a letter, Mr. Justice Stewart, to the Chairman of International Inter-religious Service Board for conscientious objectors --

Justice Potter Stewart: I see.

Mr. Marvin M. Karpatkin: -- copies of which have been made available to other organizations.

Justice Harry A. Blackmun: Mr. Karpatkin, it's your footnote 46 I think which your law student task force review these various agencies and prohibition of counsel or the absence of prohibition provisions.

Do you know anything about these agricultural review committees which have some parallel anyway to the Local Board, their duty being to determine how much acreage should go into the soil bank, this kind of thing?

Do you know whether there is a prohibition of the appearance of counsel?

Mr. Marvin M. Karpatkin: I do not know the answer to that, Mr. Justice Blackmun, but I would be delighted to research it and present a memorandum to the Court.

Justice Harry A. Blackmun: Well, it isn't necessary.

I just noticed it was listed here and I --

Mr. Marvin M. Karpatkin: I can say for sure that we did not find an express prohibition.